Doherty & Ors v Rugby Joinery (UK) Ltd.

An employer’s knowledge that work presents a foreseeable risk does not automatically determine when particular precautions become obligatory. The duty depends on what reasonable care requires in the circumstances, including the industry, work, tools, exposure pattern, available knowledge and reported symptoms.

Once monitoring for vibration-induced white finger is required, it may entail periodic medical enquiries and warnings to report symptoms. An employee known to have developed symptoms should ordinarily be removed from all work with vibratory tools. Compliance with recommended exposure limits may be insufficient because symptoms can arise below those limits.

Eight former factory employees developed vibration-induced white finger after using hand-held vibratory tools while employed in woodworking factories operated by the respondent. The Sheffield County Court found that the disease had been contracted at work but dismissed all claims. It held that duties to assess vibration and monitor employees arose only in 1991/92, and that the four employees who continued working thereafter had not exceeded recommended exposure periods.

All eight employees appealed against the finding that no relevant duty arose earlier. Four also contended that, after 1991/92, reasonable monitoring would have revealed their symptoms and required their removal from work involving vibratory tools.

1. Disposition. The court unanimously allowed the appeals of the four employees who worked after 1991/92 and remitted their claims for assessment of damages resulting from breaches after that date. It dismissed the other four appeals.
2. Wilson J held that the trial judge was entitled to conclude, on the expert evidence, that neither the 1975 draft guidance nor the 1987 British Standard, without any employee complaint, required this woodworking employer to assess its tools or monitor its workforce before 1991/92. Industry practice was relevant, though not decisive, when determining what reasonable care required in a developing field of knowledge.
3. Hale LJ stressed that the decision did not establish 1991/92 as a general date of knowledge for vibration-induced white finger in woodworking. Awareness of a risk must be distinguished from the precautions reasonably required to meet it. Low exposure levels, the guidance’s focus on substantially greater exposures, the experts’ understanding and the absence of complaints entitled the judge to find no earlier breach.
4. Auld LJ added that a general date of knowledge is only a starting point. The relevant date depends on the industry, the particular work and tools, the nature and pattern of their use, and when those circumstances should have put the employer on notice that protective action was required.
5. From 1991/92, reasonable monitoring required medical questions directed to symptoms among all employees using vibratory tools, not merely orbital-sander users. It also required warnings about the risk and advice to report whitening, discolouration, tingling or numbness.
6. In the absence of specific contrary evidence, the four employees were likely to have disclosed their symptoms if appropriately warned or questioned. Once the employer learned of those symptoms, limiting exposure to published maxima would not have discharged its duty. As vibration-induced white finger could develop below those maxima, reasonable care required the symptomatic employees to be removed from all work involving vibratory tools.

1. Court of Appeal (Civil Division): In [2004] EWCA Civ 147, allowed four appeals and remitted those claims for assessment of damages arising from breaches after 1991/92; dismissed the other four appeals.
2. Sheffield County Court: His Honour Judge Moore dismissed the eight consolidated claims on 30 January 2003. No neutral or report citation is stated.